Newing v Police [2018] NZDC 5927 (6 April 2018)

Last Updated: 3 October 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2016-044-003066

[2018] NZDC 5927

LANCE PHILLIP NEWING Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	9 March 2018
Appearances:	Mr C Mitchell for the Appellant Sgt J Gallagher for the Respondent
Judgment:	6 April 2018

RESERVED DECISION OF JUDGE C S BLACKIE

On Appeal from Ruling of Community Magistrate Declining s 106 Application

Introduction

[1] On 15 December 2016, Mr Newing pleaded guilty to one charge of driving with excess blood/alcohol. On 31 July 2017, Community Magistrate, S Cole, in the District Court at North Shore, refused Mr Newing’s application for a discharge without conviction and, instead, convicted and fined him $500, plus $130 Court costs. He was disqualified from driving for a period of six months, commencing 1 August 2017. Mr Newing now appeals against the refusal to discharge him without conviction to this Court.

Background Facts

[2] At about 10.01 pm on Sunday, 28 August 2016, Mr Newing was the driver of a Holden motor vehicle, registration [number deleted], travelling in a southerly direction along East Coast Road, Mairangi Bay. He was stopped by the Police due to exceeding the 50 km per hour posted speed limit and failing to comply with a red traffic signal. When spoken to by the Police, he exhibited signs of recent alcohol intake. Breath test procedures were carried out and Mr Newing’s breath was found to contain 707 micrograms of alcohol per litre of breath. In explanation, Mr Newing stated that he had a couple of drinks prior to driving. He was currently employed as a sales manager and had previously appeared before the Court. His convictions related to careless use of motor vehicle in 1994 and exceeding 100 km posted speed limit in 2013. On both occasions, the penalty was by way of a fine.

The Community Magistrate’s Decision

[3] Counsel for Mr Newing conceded that the learned Community Magistrate made no error in connection with his application or interpretation of the law. He relied solely on the Community Magistrate not having properly applied his mind to the facts. Had he done so, he would have found that the consequences of the conviction would have been out of all proportion to the seriousness of the offending.

[4] With regard to the facts, the learned Community Magistrate recorded as follows:

“(6) You submit today that a discharge should be granted in your case on the grounds that a criminal conviction will impede your ability to travel overseas, particularly at short notice, because of the requirements of your work. The difficulty with overseas travel will result in the termination of your employment, you say this will, in turn, financially damage the company and its employees and cause you some personal pain.

(7) Dealing now with the gravity of the offence, including aggravating and mitigating factors relating to you and the offending, you are aged 41, you have pleaded guilty to this charge, although not at the earliest opportunity, some three months later after the initial appearance. You have accepted the summary of facts. You were apprehended drink driving 10 pm in the evening in Mairangi Bay doing 67 km an hour in a 50 km zone. You failed to comply at the same time with a red traffic

signal, so there were some aggravating features here, and you showed signs of recent alcohol intake - your reading nearly three times the legal limit. The limit is 250. Your driver’s licence was suspended for 28 days. Your explanation at the time – you had a couple of drinks.

(8) You have a very responsible job and are obviously well thought of by your employer. However, you made a conscious decision to drive with a relatively high level of alcohol in your system. The Police noticed signs of recent alcohol intake and, complicating matters, you failed to comply with a red traffic signal. You must have known that a conviction for excess breath alcohol could possibly jeopardise your work, as you now say it does.

(9) Drink driving is serious almost by definition. A blood level that is more than minimally above the permissible level constitutes inherent serious offending. Franks v Police [2013] NZHC 3556. Simmons v Police [2014] NZHC 2488. The readings there were, in Franks’ case, 653 and Simmons a blood reading of 115. The offending in these cases was described as moderately serious and here is at least moderately serious in the circumstances. So, I assess the gravity of the offence as moderately serious.

(10) What of the direct and indirect consequences for you? You are a Trading Manager, you have 18 years at [Company name removed], maybe 19 years by the time I am dealing with this now. You are responsible for a $30 million turnover per annum. You are required to travel over the world and about Auckland. Sometimes you travel to Hamilton. You are in the food industry. You have filed an affidavit with your circumstances, also one from your supervisor, the [Managing Director]. You also filed a copy of your employment contract. You say you are required to travel overseas at short notice and you, yourself, have made enquiries with various consulates of the countries that you travel to. You say that you have discovered there will be difficulties for you if you are convicted and that you will need to go through a prolonged visa process, whereas such process is not necessary without a conviction. You say, for example, in respect of the US you could arrive at your work here and be told to be on the next plane. And the same goes for some of the other countries that you travel to. You say that your inability to travel at a moment’s notice would leave the Directors of [the Company] with no option but to dismiss you. You say you are the only person trained and experienced to undertake your work. This being the case, however, I would suggest that by now there has been plenty of time to get someone else trained up to your work, I would think. Your offending was seven- and-a-half months ago, so there has been plenty of time for arrangements to be put in place in the event this application was unsuccessful.

(11) You say if you lose your job this will have a serious roll-on effect on your ability to care for your son and to pay maintenance and you say it is not practical for Directors of your firm to take over your role. You say there are 45 staff in the firm nationwide and your employer endorses your submissions and repeats that visa and travel problems would mean the company would have to terminate your employment.

(12) I note that [the Managing Director] relies for this from what you have told him about visa and travel problems and you, in turn, obtained this information from various consulates.

(13) Your employment contract is appended to your submissions. A drink/drive conviction is considered serious misconduct and sackable? and you suggest this sacking would be carried through. The contract does not specifically refer to drink/driving, instead it refers to “misconduct”, “being under the influence of alcohol” and the “loss of your driver’s licence”.

(14) In my view, having canvassed all the material for me, the loss of your job is not a necessary consequence of a conviction but a possibility. I do not consider there is a real and appreciable risk of this occurring. There is no evidence before me of actual travel difficulties in respect of any particular country. Greater proof on this issue is necessary than is available to me here, as it is a basis also for the submitted flow-on consequences to you.

[5] After making reference to a number of High Court and court of law decisions, the learned Community Magistrate goes on to say:

“(16) On the present information, the suggested consequences for you are speculative. It may be there are difficulties with some countries in the terms of visas and the application process but you have not detailed what difficulties or what countries and for how long a conviction would delay any travel plans. I am not going to make a guess or speculate on the issues.

(17) Accordingly, although there may be consequences, I am not satisfied on the present evidence that there is a real and significant risk of the suggested consequences, that is travel delay and refusal would occur and it is only if you are unable to travel that the submitted loss of employment would follow. I note here my earlier comments about your firm training someone else to make preparation for an adverse decision on your application for discharge without conviction. It is not at all certain that there will be travel difficulties and, accordingly, the causal link to loss of employment is seriously weakened, if not destroyed.

(18) In the circumstances, I am not satisfied either that there is a real or significant risk that you will lose your employment. As I see it, in any event, even if there are travel difficulties as a flow-on from a conviction, the business would not easily let you go, a man of your experience and ability, without taking all necessary steps to retain your services by covering for you where necessary. I note here there is no evidence from [the Managing Director] about the ability either way for other staff or Directors to cover for you if you are convicted and require visas in the future. Although there has been plenty of time available, I note there is no updated information, either from you or [the Managing Director], about the current situation.

(19) I would expect also that by now the Directors would have thoroughly researched the visa situation, so as to be able to deal with the issue without letting you go, if at all possible. I do not accept the broad assertion of [the Managing Director] in the circumstances and on the information for me that your employment would be terminated immediately if you are convicted, particularly as he seems to have made this assertion based on second-hand information provided to him by you.

The Appeal

[6] Clearly, this is an appeal against the exercise of a discretion. It is a well-known principle that an appellant court will only interfere with the exercise of a judicial discretion if satisfied that there has been a wrongful or improper exercise of the discretion in the sense that the Judge (Community Magistrate) exercised a discretion on the basis of wrong facts, proceeded on mistaken facts, applied incorrect legal principle, took into account irrelevant considerations or failed to take into account relevant considerations, May v May [1982], 1 NZFLR 165 (CA). In support of this appeal, Mr Mitchell relied entirely on the evidence that was produced at first instance. No further affidavits were filed, updating the appellant’s position. He was originally sentenced in July 2017 and one would have expected to have received information as to how he has been operating within his firm since the original decision.

[7] It can safely be said that a discharge without conviction for drink driving would be granted only in exceptional circumstances. In Limterman v Police [2013] NZHC 891 at [9], Miller J stated:

“I agree that discharges ought to be exceptional (for driving in excess blood/alcohol, breath/alcohol). It is illuminating to reflect on the several reasons why that might be so. First, in the hands of a drunk, a car is a dangerous thing. Second, good character and extenuating personal circumstances normally count for little. Drink driving is a pervasive social problem, which has brought many good citizens into the dock and caused legislature to respond with a sentencing policy that emphasises personal and general deterrence. Notably, a Court may relieve the offender of the minimum disqualification period only for special reasons relating to the offence. Special reasons relating to the offender will not do. Nor is ignorance of one’s alcohol level a defence; a driver who chooses to drink at all takes the risk that for whatever psychological other reason her level will prove higher than she thought. Third, the applicant must identify some extraordinary consequences of the conviction, which is difficult when the ordinary consequences are unpleasant. A drink driving conviction always carries social stigma and the offender must normally disclose it to a prospective employer, who may wonder whether its evidence is poor judgment or undue fondness of drink and

to immigration authorities, who may categorise it as evidence of anti-social tendencies”.

[8] So then, following the High Court in the decision of Limterman v Police and the more recent decision of Basnyat v Police [2018] NZHC 51 (5 February 2018) the granting of a discharge without conviction in relation to drink driving cases will be truly exceptional.

[9] Mr Mitchell endeavoured to persuade this Court in oral submissions that the fact that Mr Newing is required by his employer to travel overseas at “a moment’s notice” rendered his situation truly exceptional and that the loss of his ability to do so put his future employment in jeopardy.

[10] Mr Mitchell relied on the same evidence by way of affidavit that had been produced to the Community Magistrate. Issues relating to overseas travel are frequently advanced as a ground for a 106 discharge. However, since the decision of the Court of Appeal in Edwards v R [2015] NZCA 2853, the criteria relating to overseas travel in support of a s 106 has been comprehensibly promulgated. The Court stated:

“(24) The Court must be “satisfied” that the consequences of conviction are out of all proportion with the gravity of the offence. It is settled law that an applicant for a discharge need only point to a real and appreciable risk that the adverse consequences will ensure. That standard recognises that the Court is being asked to predict what will happen in the future. So, for example, Mr Edwards need only point to a real and appreciable possibility that he will need to travel overseas for work.

(25) It does not follow, however, that a Court will permit an applicant to speculate about matters of present fact in which we include any existing travel restrictions that are said to preclude travel. The proof of these matters may require expert evidence if they are not agreed and cannot be established by any other way.

(26) It seems to us, speaking generally, that a Court will ordinarily expect to be satisfied under the law and practice of the jurisdiction concerned:

• (1) The conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
  
• (2) As a consequence of the conviction, the applicant is prima facie inadmissible and for how long; and

• (3) There is no alternative entry of process available.. If there is, such process is unreasonably difficult and uncertain in all the circumstances.
  

(27) If all these things can be established, the sentencing Court must further be satisfied that the offence is not so serious that it would be wrong to allow the applicant to present himself or herself to foreign immigration authorities without disclosing it.

[11] In this case, the evidence of Mr Newing and also that of [the Managing Director], a Director of his employing company, given in support, speaks only in general terms. Nothing specific has been put before the Court by way of visa restrictions or otherwise in any of the countries to which Mr Newing may be required to travel. The only evidence are the enquiries which Mr Newing purports to have made to various consulates. He says that it is his “understanding” that a drink/drive conviction is a criminal offence and would mean that the visa process would be prolonged and he would need to apply for a visa to countries where without a conviction one is not required. A prime example is the United States of America. There is nothing before the Court to substantiate that understanding. Indeed, Mr Mitchell argued the same point in the case of Basnyat v Police, in respect of which the Judge observed:

“[22] The only country specifically referred to in Mr Basnyat’s affidavit is the United States. The respondent referred to advice provided by the US Consulate in New Zealand on travelling with criminal convictions in the United States. He records that “a single DIC/DUI conviction is NOT grounds to deny entry to the United States. Mr Mitchell responds that is not clear whether the visa waiver programme would apply to Mr Basnyat. If it does not, then he would have to apply for a visa and its grant could not be guaranteed”.

[12] Surprisingly, Basnyat v Police was not referred to me by counsel, despite his having appeared for the appellant in that case

[13] Mr Basnyat’s appeal was before the High Court on 5 February 2018, whereas the current appeal was before this Court on 9 March. One would have thought that, given the comments of the learned High Court Judge, the situation with regard to entry to the United States would have been clearly explained and supported by authoritative evidence.

[14] Besides, there is nothing in the evidence to explain why Mr Newing’s travel arrangements need to be made in such haste – “I need to be able to travel at short notice and by that I mean that I can arrive at work and be told to be on the next plane out to a certain country or location”. No examples illustrating that need are advanced in the evidence. The Court may have been assisted if reference were made to an itinerary of future planned overseas destinations with supporting evidence as to individual visa requirements and also giving examples of occasions when “same day” travel is required and/or has been required in the past. The Court might also have been assisted if there was evidence as to duration of a visa once required. Are they single entry or multiple entry?

[15] I consider the evidence adduced to be far from convincing. I am in the same position as Brewer J in Basnyat v Police, when he observed:

“(32) As to the issue of travel, the evidence does not establish any material consequences that meet the standards set out in the case law to which I have referred. Not all convictions will give rise to travel difficulties. There is no specific evidence before me of a country that Mr Basnyat wishes to travel to work in is likely to be refused entry on the basis of a single drink/drive conviction.

[16] It follows that there is nothing before me which could lead to a conclusion that the learned Community Magistrate had proceeded upon mistaken facts, had applied incorrect legal principle or had taken into account irrelevant considerations in relation to his finding as to Mr Newing’s travel. Similarly, there is nothing to persuade me that the Community Magistrate was mistaken as to facts relating to Mr Newing’s future employment. No further evidence has been advanced. The Community Magistrate was entitled to make the findings that he expressed in his decision. There was no error in legal principle.

[17] The appeal is dismissed. The Community Magistrate’s decision, conviction and sentence is to stand.

C S Blackie

District Court Judge